IN THE COURT OF APPEAL OF TONGA

Tu'ivai

v

R

Court of Appeal, Nuku'alofa
Burchett, Salmon, and Moore JJ 
AC 01/2006

9 and 10 August 2006; 16 August 2006 

Criminal law – appeal against conviction and sentence – no grounds made out – appeal dismissed 

The facts are set out in the Supreme Court decision at R v Tu'ivai [2006] Tonga LR 254. The Supreme Court convicted the appellant of an attempt to evade import duties in relation to 600 cartons of Bounty Rum. He was fined $20,000. He appealed against his conviction and sentence. The grounds of the appeal were: misdirection of the jury by the trial judge on questions of fact and law; misdirection against the weight of evidence; the introduction by the Crown of a new count in the indictment without re-arraignment of the appellant; and the fine imposed was excessive. 

Held: 

1. The proper test as to whether the jury was misdirected was not whether the Judge usurped the jury's function but whether he commented in such a way as to make the summing up fundamentally unbalanced; if he did, repetition of the standard direction that the facts were for the jury and that an expression of opinion by the judge was to be ignored if the jury disagree with it, would not remedy the unfairness. 

2. The Court was satisfied that, given the strength of the evidence against the appellant, the Judge was entitled to sum up as he did. Overall the summing up was balanced and in particular the appellant's defence was properly put to the jury. The Court was satisfied that the summing up did not deprive the appellant of a fair trial. 

3. The appellant did not make out any of the grounds of his appeal against conviction. 

4. As to the appeal against sentence, the Court found that the Judge's approach was entirely appropriate. The appeal against sentence was dismissed. 

Cases considered: 
Ibrahim v R [1914] AC 599 
Mears v R (1993) 97 Cr. App.R. 239 PC 
R v Cohen and Bateman 2 Cr.App.R. 197,208 

Statutes considered: 
Criminal Offences Act (Cap 18) 
Customs and Excise Act (Cap 67) 

Appellant in person 
Counsel for the Crown: Ms Simiki

Judgment 

[1] In January of this year the appellant was convicted of an attempt to evade import duties in relation to 600 cartons of Bounty Rum. He was later fined $20,000. He appeals against his conviction and sentence. 

[2] The grounds of Mr Tu'ivai's appeal may be summarized as follows: 

(1) Misdirection of the jury by the trial judge on questions of fact and law. 

(2) Misdirection against the weight of evidence. 

(3) The introduction by the Crown of a new count in the indictment without re-arraignment of the appellant.

(4) The fine imposed was excessive.  

The Indictment 

[3] Mr Tu'ivai's principal submissions related to the indictment in respect of which he was brought to trial. He was arraigned in 2005 on an indictment which contained two counts under The Criminal Offences Act - knowingly dealing with forged documents and conspiracy to commit bribery of a government servant. 

[4] We accept as correct a chronology of events prepared by Ms Simiki for the Crown as to changes later made to the indictment. In early January 2006 Ms Simiki contacted Mr Clive Edwards who represented Mr Tu'ivai at trial to advise him that the Crown would be making an application to amend the indictment to include two counts of conspiracy to bribe a government servant and one count of attempt to evade customs laws. Mr Edwards consented to this proposal.  

[5] On the 13th January the Crown filed an amended indictment. Again this was done with the consent of defence counsel. The trial commenced on the 16th January. Prior to its commencement counsel for the appellant and two co-accused together with counsel for the Crown met the Chief Justice in chambers. The Crown applied to amend the indictment, defence counsel consented and the application was granted. 

[6] On the 23rd January, Counsel for the Crown applied to the Court to dismiss the counts of conspiracy to commit bribery against the appellant on grounds of insufficient evidence. That application was granted. The Chief Justice summed up to the jury on the 24th January. At that stage the charges remaining were a charge of attempt to evade customs laws against Mr Tu'ivai and a similar charge together with a bribery charge against the Hon. Veikune. Charges against a third accused had been dismissed. 

[7] Ultimately the appellant and Hon. Veikune were found guilty of the charges they faced. 

[8] Mr Tu'ivai maintained that he did not become aware of the change to the indictment until just before the close of the Crown case. He told us that he discussed the change with Mr Edwards who told him not to be concerned because they had a good defence. We accept that the revised charges were read to the jury in the presence of Mr Tu'ivai. He does not dispute this but says he did not appreciate that changes had been made. We asked him what he would have done differently had he known of the changes earlier. He was unable to think of anything. This is perhaps not surprising because it is clear that the charges he originally faced involved the same series of actions and the same documents as were relied upon for the charge in respect of which he was eventually convicted. 

The Constitution  

[9] Mr Tu'ivai submitted that by virtue of Clause 11 of the Constitution of Tonga he was entitled personally to receive a copy of the amended indictment before the trial commenced. 

Clause 11 so far as it is relevant provides: 

"No one shall be tried or summoned to appear before any court or punished for failing to appear unless he have first received a written indictment (except in cases of impeachment or for small offences within the jurisdiction of the magistrate or for contempt of court while the court is sitting). Such written indictment shall clearly state the offence charged against him and the grounds for the charge ..." 

[10] He also relied upon Clause 13 of the Constitution and s 3 of The Criminal Offences Act. We are satisfied that these last two provisions are not relevant in the circumstances. Clause 13 prohibits (subject to certain exceptions) a person bring tried on any charge other than that in the indictment. In this case as will become clear, we are satisfied that Mr Tu'ivai was tried on the charge in the indictment. Section 3 refers to the case where a person is found guilty of an offence other than that charged. That did not happen in the present case. 

[11] We are satisfied too that there has been no breach of clause 11. The clauses of the Constitution (as indeed with all legislation) must be read in context. Clause 11 and those which follow it are designed to ensure that people are tried according to proper procedures which ensure that they have an adequate opportunity to mount a defence to any charge laid against them. This of course requires adequate notice of the nature of that charge. We consider that these requirements are met in a case where an amended indictment is provided to the counsel for an accused. Counsel is much more likely to appreciate the consequences of an amended indictment than an accused person thus ensuring that the purpose of the clause is met. Counsel is of course the agent of the accused. 

[12] In this case Mr Edwards had ample notice of the change. He did not think it necessary to seek an adjournment. He obviously considered that the briefing he had had from Mr Tu'ivai was adequate to meet the amended charge. Mr Tu'ivai did not give evidence so no further discussion was needed for that purpose. 

The letter from the Collector of Customs

[13] The other major concern of Mr Tu'ivai related to evidence which was called in his defence. That evidence was of a letter written by the Collector of Customs in October 2003 recording an agreement that the rum, the subject of the charge, should be sold to a duty free shop. The submission appeared to be that because the rum was to go to a duty free shop no duty was payable on it and there could be no attempt to evade. It is clear however that the proposal to sell to the duty free shop arose after the events which formed the basis of the charge. Indeed it seems that the letter was an ex post facto attempt to avoid the consequences of the earlier actions. 

[14] A further submission put by Mr Tu'ivai was that the Chief Justice was wrong to order the forfeiture of the 600 cartons of rum the subject of the charge. It is correct that he did order forfeiture. However it was unnecessary for him to do so. Forfeiture is an automatic consequence of conviction under s 210(1)(e) of The Customs and Excise Act. 

The Summing-up 

[15] Although not directly raised in his grounds of Appeal Mr Tu'ivai in his written submissions claimed that the Chief Justice had influenced the jury to find him guilty rather than letting them decide freely. We take this to be a complaint concerning the Judge's summing up to the jury. 

[16] We have carefully read the summing up. The Judge has fairly reminded the jury of the evidence called by the Crown. He told them that if they accepted that evidence they could infer that Mr Tu'ivai had fraudulently attempted to avoid duty. Although a strong statement we do not consider that it was inappropriate. There are other portions of the summing up where the judge has advised the jury of inferences which can be drawn from the facts. Towards the end of his discussion of the Crown evidence he expressed the belief that the evidence was sufficient for the jury to reach a decision against Mr Tu'ivai. This is a firm opinion but we have concluded it does not go too far. 

[17] The proper test is not whether the Judge usurped the jury's function but whether he commented in such a way as to make the summing up fundamentally unbalanced; if he did, repetition of the standard direction that the facts are for the jury and that an expression of opinion by the judge is to be ignored if the jury disagree with it, would not remedy the unfairness – see Archbold 2005 para 7 – 67. As Channell J said in R v Cohen and Bateman 2 Cr.App.R. 197,208: 

"In our view, a judge is not only entitled, but ought, to give the jury some assistance on questions of fact as well as on questions of law. Of course, questions of fact are for the jury and not for the judge, yet the judge has experience on the bearing of evidence, and in dealing with the relevancy of questions of fact, and it is therefore right that the jury should have the assistance of the judge. It is not wrong for the judge to give confident opinions upon questions of fact. It is impossible for him to deal with doubtful points of fact unless he can state some of the facts confidently to the jury. It is necessary for him sometimes to express extremely confident opinions. The mere finding, therefore, of very confident expressions in the summing up does not show that it is an improper one." 

Cohen and Bateman was decided in 1902. We have considered more recent authority. There are cases where the judge has abandoned the role of judge for that of advocate. We are satisfied that this is not one of those cases. In Mears v R (1993) 97 Cr. App.R. 239 PC Lord Lane at p.244 described the task of the Appellate court as being "... to take the summing-up as a whole... and then ask themselves in the words of Lord Sumner in Ibrahim v R [1914] AC 599, 615, whether there was: 

'Something which...deprives the accused of the substance of a fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in the future. ' " 

We are satisfied that, given the strength of the evidence against Mr Tu'ivai, the Judge was entitled to sum up as he did. Overall we consider the summing up to be balanced and in particular we consider that the appellant's defence was properly put to the jury. We are satisfied that the summing up did not deprive the appellant of a fair trial. 

[18] We conclude that the appellant has not made out any of the grounds of his appeal against conviction. We should however comment on some concerns we have had about the wording of the indictment. 

[19] The charge against Mr Tu'ivai was brought under s 210(1)(e) of The Customs and Excise Act which provides: 

"(1) Every person who – 

(e) is in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any import or export duties of customs, or of the laws, and restrictions, of the customs relating to the importation, warehousing, delivery, removal, loading and exportation of goods; 

 shall be guilty of an offence and for each such offence incur a penalty of treble the value of the goods or $200 whichever is greater; and all goods in respect of which any such offence shall be committed shall be forfeited." 

[20] The indictment was (as is customary) in two parts – a statement of offence and particulars of offence.

[21] The statement of offence provided:  

"Attempt to evade customs laws, contrary to section 210(e) of the Customs and Excise Act" 

[22] The particulars provided: 

"'Amini Tu'ivai on or about 2003 you knowingly attempted to evade import duties of customs relating to the importation of 600 cartons of Bounty Rum in container TRLU No. 3530660." 

[23] In our view, following the wording of clause (e) the statement of offence should have been worded: "Being knowingly concerned in a fraudulent attempt at evasion of import duties".

[24] When our concerns were raised with Ms Simiki she referred us to para 7-78 of Archbold. She submitted that the test to apply is one of fairness. In this case she submitted that the offence charged is sufficiently spelled out in the combination of the statement and particulars. We accept that submission. We consider that the reference to clause (e) together with the particulars gave sufficient notice to the appellant of the charge against him. He of course made no complaint on this issue himself.  

[25] It is correct that the indictment does not include the word "concerned" which was used by the Judge in his description of the offence in summing up. The use of that word potentially broadens the class of person caught by the section. However on the basis of the facts referred to in the summing up we are satisfied that even without the addition of that word the facts provide an ample basis for Mr Tu'ivai's conviction. The facts all pointed to his direct involvement in the attempt at evasion. We conclude therefore that no unfairness to the appellant has resulted from the wording of the indictment.  

[26] For all the above reasons the appeal against conviction is dismissed.  

Sentence 

[27] The appellant submits that his sentence was excessive. He says that it was unfair when compared with that of his co-offender Hon. Veikune. Hon. Veikune was fined $20,000 on the bribery charge in respect of which he was found guilty but execution was stayed on the customs duty charge. Mr Tu'ivai submits that he should be treated 230 in the same way as Hon. Veikune on that charge. His submission reflects a misunderstanding of the purpose behind the Judges sentencing decisions.  

[28] The Chief Justice concluded that Mr Tu'ivai's role in the importing of and the attempt to evade payment of duty on the 600 cartons of Bounty rum was the lead one and that Hon. Veikune played a lesser role. He approached the sentence imposed on Hon. Veikune by considering the totality of his offending and concluded that the $20,000 fine on the bribery charge was sufficient punishment for the whole of his offending. This is an entirely appropriate approach to take. On this basis there can be no question of any lack of parity between the sentences imposed on the two men.  

[29] The appeal against sentence is dismissed.